Recent Criminal Cases

Journal of Criminal Law and Criminology

Volume 29

Issue 2

July-August

Article 12

Summer 1938

Recent Criminal Cases

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LEGAL PUBLICATiONS BoARD or NORTHWESTERN UNIVERsITY SCHOOL or LAW

OLIVR M. Tow SEND, Case Editor

EVIDENCE-ADMISSIBILITY OF DE-CEPTION ("LIE-DETEcToR")

TEsTs--[New York] On trial for robbery in the first degree, as a second of-fender, the defendant offered the expert testimony of Rev. W. G. Summers as to the results of a "lie-detector" test which had been performed on him. Overruling the objection of the district attorney the court received the evidence and permitted the jury to evaluate it: People v. Kenny, 3 N. Y. S.

(2d) 348 (1938).

The principal case is the first re-ported decision, and at that only a trial court decision, allowing the admissibility of the results of ma-chines or instx uxents popularly described as "lie-detectors." The only two former cases both reached the opposite result: Frye v. United States, 293 Fed. 1013 (D.

C. 1923); State v. Bohner, 210 Wis. 651, 246 N. W. 314 (1933).

The Frye case decided in 1923 involved the use of the systolic blood pressure test of W. M. Mars-ton and the court after an

intelli-gent consideration of the problem

said:

" We think that the systolic blood pressure deception test has not yet gained such standing and scientific recognition among

phy-siological and psychological au-thorities as would justify the courts in admitting evidence duced from the discovery, de-velopment, and experiments thus far made.'

Being the first case on the point it received many able and favorable criticisms in legal publications:

(1924) 37 Harv. L. Rev. 1138; (Y924) 33 Yale L. J. 771; (1924) 24 Col. L. Rev. 429.

Ten years later the Wisconsin court passing on the admissibility of a proffered test on the Keeler Polygraph still felt that deception tests had not yet passed beyond the experimental stage; see notes in (1933) 24 J. Crim. L. 440; (1933) 13 B. U. L. Rev. 321; (1933) 8 Wis. L. Rev. 283.

But by March, 1938, the Queens County Court of New York decides that the Rev. Summers' develop-ment of the pathometer is safely beyond the experimental stage. For the court, as in the two previ-ous cases, adopts as a basis the legal principle set out in 2 Wig-more, Evidende (2d ed. 1923) §875: "if ever there is devised a psycho-logical test of the evaluation of witnesses the law will run to meet it." And this court is confident the time has come.

Z86

RECENT CRIMINAL CASES

A brief review of Father

Sum-mers' accomplishments and claims

for his instrument as given in the

preliminary examination readily

reveals the basis for this view of

the court. As head of the

Depart-ment of Psychology at the

Gradu-ate School of Fordham University,

Summers holds two Ph.D.'s: one

in physics from Georgetown

Uni-versity, and one in psychology

from

Gregorian

University

at

Rome. Besides this he has done

research at Prague University in

Czechoslovakia and at the

Uni-versity of Vienna. And he

mod-estly claims practical infallibility

for his deception tests in 6,000

laboratory tests and 49 tests of

ac-tual criminal suspects.

Such a

record is not to be taken lightly

and to- better evaluate the worth

of it requires a brief summary of

the work and achievements of

other experimenters in the field.

Physical appearance, motions,

and mannerisms of a witness are

well recognized tests of his

credi-bility both in the lay and in the

judicial mind: Howard v.

Louis-ville Ry., 32 Ky. L. 309, 105 S. W.

932 (1907); Boykin v. People, 22

Colo. 496, 45 Pac. 419 (1896); but

see Purdy v. People, 140 Ill. 46, 29

N. E. 700 (1892). But in recent years

there has been a steady effort to

develop more scientific tests. Some

thirty years ago Professor

Miin-sterberg advocated an "association

word and reaction test" for use by

the courts (Miinsterberg, On the

Witness Stand, 73). But the

prac-ticality of such a test was blasted

by Professor Wigmore, (1909) 3

Ill. L. Rev. 399, and the

develop-ment swung off to physical

phe-nomenon.

In 1914 Benussi developed the

respiratory test based on the

rela-tion between false answers and the

inspiration-expiration ratio. This method was later refined and used by Burtt of Ohio State University; cf. (1923) 4 J. of Experimental Psych. 1. Meanwhile W. M. Mars-ton working under Miinsterberg at Harvard developed a test based on the changes of the blood pressure; (f917) 2 J. of Experimental Psych. 117; (1921') 11 J. Crim. L. 551. Later Dr. J. A. Larson conceived the idea of combining the respira-tory and blood pressure tests to form the so-called Berkeley Lie-Detector Test and for the first time actual work was done in connec-tion with the police. His results were most encouraging but he ad-mitted at that time there was no test which was suitable for "the positive identification of decep-tion"; (1922) 47 A. B. A. Rep. 619; (1921) f2 J. Crim. L. 390. For the best discussion of the theory and development of these various tech-niques see McCormick, Deception

Tests and the Law of Evidence,

(1927) 15 Cal. L. Rev. 484. Since that time the main work has been done during the past eight years by Leonarde Keeler and his associates at the Scientific Crime Detection Laboratory of North-western University School of Law. Fourteen years ago Keeler de-veloped his "Polygraph" which combines instruments for testing the respiratory changes, the

changes in the blood pressure, and the rate of heart beat. Later he supplemented his technique and instrument with a psychogalvano-graph similar to that used by Sum-mers; Keeler, A Method for

De-tecting Deception, (1930) 1 Am. J. Pol. Sci. 38; Inbau, The

material. The results have been

remarkable but no claim of

in-fallibility is made. These

experi-menters estimate an accuracy of

85% in laboratory cases, and

con-fessions have been obtained in

ap-proximately 75% of actual cases

where deception was shown; cf.

Inbau, supra at 83.

During all this period

psychol-ogy departments in many colleges

and universities have been

experi-menting with the

changes in

electrical resistance of the skin

as a test of deception.

Re-quiring only a galvanometer and a

Wheatstone bridge, it provides a

simple yet extremely sensitive

in-strument for laboratory work. Yet

most workers have not found it too

reliable when used alone. When

used in connection with the

pneu-mograph and the

sphygmomano-meter, as with the Keeler

Poly-graph, it has proven to be of some

assistance; but not of any

consider-able practical value in actual cases.

Now Father Summers in his

self-styled psychograph or pathometer

employs only an instrument for

recording the psycho-galvanic

re-action of the skin. From his

testi-mony in the Kenny case we learn

that he began his work in 1931.

While working on human

emo-tional reactions he was led off into

the field of detection of deception,

and he has occupied himself with

that since 1932. After testing 6,000

"guinea pigs" in his laboratory he

was convinced that his apparatus

and technique were "effectively

100% efficient." And in a critical

test of 271 persons divided into

three groups he claims to have

been able to detect 98% of the

guilty, better than 98% of the

ac-complices, and 100% of the

inno-cent. As he states it, such results

are due to the refinement of his

instrument and the peculiar rhythm and repetition used in the asking of significant questions. Thoroughly convinced of the effec-tiveness of his test Summers was ready for the outside world. So he performed tests of 49 actual suspects; offered his testimony in at least two trials; and aided the sale of Conoco Oil in a full page advertisement giving a picture and chart of the "Lie-Detector" (May 21, 1938), Saturday Evening Post. Yet when asked by the defense counsel in the Kenny case as to the results of the 49 actual cases the following delightfully vague dialogue occurred:

Q. Now Father, in connection with those 49 cases with re-spect to which you were asked to apply this machine or apparatus on, would you tell us what the result of that

was?

A. The results have been, in all

the cases which are closed to date, uniformly confirma-tory of our results.

Q. In other words the courts subsequently affirmed or the public officials subsequently confirmed the results that you received from your use of this apparatus?

A. Or-yes, that is substantially

correct.

In view of the general develop-ment of lie detection and of the specific work of Summers, was the court justified in deciding that the pathometer had gone beyond the experimental stages into the realm of general scientific acceptance? We do not believe so for two

rea-sons.

100% efficiency. The Staff of the Scientific Crime Detection Labora-tory using a psycho-galvanometric test, in connection with two other

recognized tests, make no such

claim of infallibility. So, unless we are to write Summer's claim off as pure exaggeration, we must credit his technique and interpretation of results with almost unbelievable efficacy. Secondly, it is apparent that Summers has not yet con-ducted enough tests under actual conditions to justify his confidence in the device. Other experimenters have found the galvanometric test more reliable in laboratory work than in actual practice. Yet Sum-mers assumes just the opposite, al-though he has tried it on only 49 actual cases. Further, on these 49 cases it is not at all clear from the testimony how the results were checked or what was the mathe-matical percentage of accuracy.

But the court, anxious to lead the way and desirous of showing its breadth of vision and liberality, accepts Summers findings as un-debatable. They point out that ob-jections to scientific evidence are not novel; that the admissibility of fingerprints, handwriting analysis, rifle markings, and psychiatric evi-dence came only after constant re-buffs. This is all very true but it is no reason for a too hasty ac-ceptance of the "lie-detector"; cf. Inbau, Scientific Evidence in

Crim-inal Cases, (1934) 24 J. Crim. L.

825, 1140. The arguments of the

Frye case and the Bohner case

still seem peculiarly applicable to the pathometer.

Even today, fifteen years after the first case, there is no substan-tial agreement either as to instru-ment or as to technique. Summers claims his is the reliable one. Marston in his recent book, "The

RECENT CRIMINAL CASES

Lie-Detector Test" (1938), scoffs at Summers and claims his invention of the systolic blood pressure test is the reliable test; see Inbau, Book Review (pp. 305-308, this Journal), and (June, 1938) 33 Ill. L. Rev., which characterizes this book as very unscientific. And the

Scien-tific Crime Detection Laboratory Staff believe their work has been the most trustworthy, while at the same time acknowledging severe limitations upon the accuracy of the technique. In such a state of scientific disagreement the objec-tion of the Wisconsin court in the

Bohner case is cogent: "the

admis-sion of the lie-detector may easily result in the trial of the lie-detec-tor rather than the issues of the case."

But even more compelling is the possibility of "complications and abuses" foreseen by the court in the Bohner case and argued to the court in the Kenny case. At the present time there are a host of incompetent and unscrupulous persons awaiting the admission of the lie detection test to offer their own "lie-detectors" tests to the highest bidder; cf. Keeler, De-bunking the Lie-Detector, (1934) 25 J. Crim. L. 153, 159; Inbau,

De-tection of Deception Technique Admitted as Evidence, (1935) 26 J.

Crim. L. 262, 270; Inbau, The

Ad-missibility of Scientific Evidence,

quackery

of self-seeking

indi-viduals.

The decision in the Kenny case having been for the defendant, it is very doubtful if there will be an appeal to the higher court. But shortly after it was decided a de-fendant in a murder trial in the Ndw York City Court in Kings County offered the testimony of Summers once again. This court refused to follow the Kenny case and rejected the evidence: Peo-ple v. Forte, U. S. L. Wk., July 5, 1938, p. 12. In line with what we have said that seems to be the sounder view.

Perhaps the best solution is a compromise position: allow the evidence to be admitted only if the prosecuting attorney and the de-fense counsel mutually agree on a particular test and also agree to accept the results as evidence. This procedure was followed in a Wisconsin case, State v. Loniello

and Grignano, in the Circuit Court

of Columbia County; see for a dis-cussion of this case Inbau, Detec-tion of DecepDetec-tion Technique Ad-mitted as Evidence, (1935) 26 J. Crim. L. 262. Such a procedure avoids the two main objections to the wholesale admission of such evidence at the present time. First, there will be no necessity for long examinations of the expert wit-nesses and their techniques. Sec-ondly, we can be assured that both sides will make an honest effort to engage a competent and reliable operator for the test. And thus may we simply and effectively keep the quacks and their "lie-detectors" from the courtrooms.

HoRACE W. JoiA_.

FomEr JEOPARDY-DIERSE OF-EMNSES SUBSISTING IN ONE

ACT.-[Illinois] While accused was

driv-ing his automobile down the wrong side of the street at a high rate of speed, he simultaneously struck and killed two pedestrians (A & B). Upon being indicted for the man-slaughter of A, the accused was set at liberty under the Illinois statute providing for discharge for want of prosecution within four months of commitment. Smith-Hurd Ill. Crim. Code ch. 38 §748. Subse-quently the accused was indicted and convicted of the manslaughter of B. This conviction was affirmed over defendant's plea on appeal of double jeopardy. People v. Allen, 14 N. E. (2d) 397 (1938) (two jus-tices dissenting). The court stated that there was no constitutional bar to conviction here as the con-stitutional provision against double jeopardy looks to the identity of the offense and not to the act, cit-ing State v. Billotto, 104 Oh. St. 13, 35 N. E. 285 (1922). Looking, then, to the identity of the offense, the court determines that two of-fenses may spring from a single act and both may be prosecuted sep-arately without placing the of-fender in double jeopardy.

On this point the courts are in hopeless conflict. One line of cases holds the act to be one offense re-gardless of the number or degree of the consequences of that act.

State v. Wheelock, 216 Iowa 1428,

held death of ten people in one fire constituted but one offense). Also

State v. Damon, 2 Tyler 387 (Vt.,

1803); Sadberry v. State, 39 Tex. Cr. Rep. 466, 46 S. W. 639 (1898); 16 C. J. 283. The opposite line of authority says the act may result in more than one offense, as in the principal case. State v. Fredlund, 200 Minn. 44, 273 N. W. 353 (1937) (auto collision resulted in death of two people; acquittal on trial for death of one not a bar to further prosecution for death of the other);

Fay v. State, 71 P. (2d) 768 (Okla.,

1937) (several children struck by auto at the same time); State v.

Taylor, 1:85 Wash. 198, 52 P. (2d)

1252 (1936) (five persons killed in auto collision, each killing a sep-arate offense), also Vaughn v.

Commonwealth, 2 Va. Cas. 273

(1821); People v. Vaughn, 215 Ill. App. 452 (1919).

The utter confusion existing in this field is well illustrated by com-paring those cases mentioned above, when several deaths occur from a single act and yet only one offense can be charged, with the cases where two degrees of a crime are involved, as homicide and as-sault. In the latter type of case some jurisdictions will punish both degrees of the crime. State v. Standifer, 5 Porter 523 (Ala., 1837); Winn v. State, 92 Wis. 571, 52 N. W. 775 (1892). This some-times results in the anomaly of a defendant who kills twice with the same bullet being better protected from punishment than another de-fendant who kills one and wounds the other of his victims.

Several tests have been advanced by the various courts which are supposed to aid in the determina-tion of the quesdetermina-tion whether there is one offense or more. Some merely state that when there has

RECENT CRIMINAL CASES

been but a single act, there must necessarily be but a single offense. See Gunter v. State, 111 Ala. 23, 20 So. 632 (1895); Spannell v. State, 83 Tex. Cr. Rep. 118, 203 S. W. 357 (1918). This seems to be more a flat declaration of policy than a test. A related criterion has been labelled the "same transaction" test which holds that a series of acts closely connected, as the repe-titious shooting of a gun, may con-stitute one act in law and thus one offense. State v. Houchins, 102 W. Va. 169, 134 S. E. 740 (1926). By this test the perpetrators of the St. Valentine's Day massacre (where seven men were murdered by a gangsters machine gun) would have constituted but one of-fense. A third standard is the sub-jective one called the intent test. Under this view the court looks into the mind of the accused to de-termine whether he has a single or multiple intent. If only one intent is found then there is a single of-fense, regardless of the number or severity of the results of the de-fendant's act. Hurst v. State, 24

Ala. App. 47, 129 So. 714 (1930);

Burnam v. State, 58 S. E. 683 (Ga.,

an objective test which looks to the

identity of the offense rather than

that of the act or the intent.

Whar-ton on Criminal Law (12th ed.

1932) §396; Vaughn v.

Common-wealth, supra; State v. Billotto,

supra; State v. Fredlund, supra;

People v. Majors, 65 Cal. 138 3 Pac.

597 (1'884); State v: Corbett, 117

S.

C. 356, 109 S. E. 133 (1921).

Thus, where there has been two

or more killings, there are as many

offenses as there are deaths, no

matter if there is only one intent

or but a single act. The courts

have circumvented the procedural

double jeopardy difficulty by

plac-ing emphasis upon the name of the

person injured. State v. Clavey,

355

Ill.

358, 189 N. E. 364 (1934)

(where the name" of deceased was

held to be an essential fact in the

indictment); Wharton, op. cit. §646.

But see State v. Wheelock, supra.

Thus where the facts are the same

under two indictments, the court

will allow conviction under both

indictments if the second

indict-ment differs from the first only as

to the name of the injured person.

The basic reason for all these

rules penetrates to a question of

policy that can be decided only

after one determines whether the

killing of one individual as such is

an offense against the state. If one

is to be responsible for the

conse-quences of his reckless acts, as in

manslaughter, then that one should

be responsible for as many killings

as spring from his criminally

negli-gent act. It is difficult to

under-stand why two killings should be

punishable as one if they happened

to have come about through a

single act. In tort law a tort

fea-sor is liable for all consequences

of negligence which he could

rea-sonably foresee. Why not apply

this doctrine to the criminally

negligent also? Then a reckless driver, as in the instant case, should foresee, that his recklessness might result in the death of one, two, or more people. He has a separate foreseeability for each person, so that each injury consti-tutes a separate offense and is pun-isbable as such. The criticism of this argument, that repetition of trial will hinder court efficiency and subject accused to consecutive trials, is answered by a possibility of joinder of similar offenses in one indictment. The principal case in effect recognizes the analogy to tort principles and lays stress on the consequences rather than the act or intent. This rationale of the problem seems the most sensible as it exacts a just penalty from the criminal for his crimes against society.

0. WENDELj LAwNi G.

EvKNCE-AD nsssiBIrvY OF Evi-DENCE OF A CoxsPIRAcY NOT CHARGED IN THE IbicTi

mr.-[New

York] Can an accused be con-victed under an indictment charg-ing him with havcharg-ing done certain specific acts, when the proof ad-duced at the trial shows merely that he conspired with others to do these acts, and that his co-con-spirators actually did them? This was the question before the Court of Appeals of New York in the re-cent case of People v. Luciano, 14 N. E. 2d, 433. The court answered the question affirmatively.

294 RECENT CRIMINAL CASES

them, the women received room

and board and "protection,"

con-sisting of bail and legal defense if

they were arrested. Luciano and

his confederates were indicted for

three types of crime: placing a

fe-male in a house of prostitution,

re-ceiving money for having so placed

her, and receiving money from the

earnings of the woman so placed,

without giving consideration

there-for. There was no evidence

sub-mitted to prove that Luciano

him-self did any of these acts.

How-ever, the jury found that he had

conspired with others to do them,

and that these others had

per-formed them. On the basis of the

conspiracy he was convicted. This

is entirely in accord with New

York authority.

Penal Law of

New York §2; People v. McKane,

143 N. Y. 455, 8 N. E. 950 (1894);

People v. Bliven, 112 N. Y. 79, 19

N. E. 638 (1889); People v. Cassidy,

213 N. Y. 388, 107 N. E. 713 (1915);

People v. Wicks, 42 N. Y. S. 630,

affirmed without opinion, 154 N. Y.

766; 49 N. E. 1102 (1896); People

v. Micelli, 142 N. Y. S. 102, affirmed

without opinion, 216 N. Y. 727, 111

N. E. 1094 (1:913), and cases there

cited. In view of these precedents,

the dissent of Judge Rippey, based

in part on the ground that the

de-fendant was convicted of a crime

with which he was not charged, is

surprising.

People v. McKane, 143 N. Y. 455,

38 N. E. 950 (1894), is the leading

New York case on this point. The

defendant in that case induced

members of the board of registry

to violate the Election Law.

He

was charged with violating that

law and was convicted, although

the statute was so worded that

only members of the board were

legally capable of violating it. He

had conspired to break it and that

was considered enough upon which to convict him. In the earlier case of People v. Bliven, 112 N. Y. 79, 19 N. E. 638 (1889), the defendant was convicted of performing acts which he himself could not actually have performed at that time, as he was absent when the crime was committed. The court said: "It [the crime] was proved by show-ing that the act although committed by a third person, and in the ab-sence of defendant, was so com-mitted by his aid and procure-ment, and in that way in law and in morals and in good sense he committed the act himself." Judge Chase summed up the New York view in People v. Cassidy, 213 N. Y. 388, 107 N. E. 713 (1915), when he stated: "When sufficient evi-dence of a common design and purpose amounting to a conspiracy has been given to make the ques-tion one for the jury, any evidence of the acts and declarations of the conspirators in furtherance of the common purpose is competent. In a case like this it is not necessary in order to make such proof com-petent that the conspiracy should be charged in the indictment:' This seems to be the general rule as well. Wharton's Criminal Evi-dence (1l'th ed. 1935) §701. Ham-mond v. State, 173 Ark. 674, 298 S. W. 714 (1927); Cossack v. U. S., (C. C. A. 9th, 1936), 82 F. (2d) 214, cert. denied, 298 U. S. 654; 298 U. S. 678, rehearing denied, 298 U. S. 691 (1936); Coplin

v. U. S., (C. C. A. 9th, 1937), 88 F. (2d) 652, 660; Belden et al. v. U. S., (C. C. A. 9th, 191:5), 223 Fed. 726;

Vilson v. U. S. (C. C. A. 9th, 1932),

61 F. (2d) 901; Kraus v. U. S., (C. C. A. 8th, 1937), 87 F. (2d) 656;

Lee Dip v. U. S., (C. C. A. 9th,

de-nied, 58 S. C. R. 526, 82 L. Ed. 510

(1938).

One New York case goes further. It is People v. Putnam, 85 N. Y. S. 1056, affirmed without opinion, 179 N. Y. 518, 71 N. E. 1135 (1904). The defendant in that case was in-dicted for grand larceny. He was found to be one of a group of con-spirators prosecuting the felonious enterprise. He was not only

victed on the basis of the con-spiracy, but the court allowed evi-dence to be introduced against him of the acts of his co-conspirators in a similar undertaking, but one in which he was not concerned. The case of Lee Dip v. U. S. (C. C. A. 9th, 1937) 92 F. (2d) 802, cert. denied, 58 S. C. R. 526, 82 L. Ed. 510 (1938), might be con-sidered an even further extension of the principle, although when the facts are considered there are qualifying circumstances which make the decision justifiable. The defendant in that case was sus-pected of concealing opium. While the officers were searching his premises, one Chin Fook came in through the back door carrying opium. The defendant was charged with concealing grains of the nar-cotic found on the premises, but the evidence concerning Chin Fook was admitted and held to have been properly admitted upon ap-peal. It was not proven that Chin Fook was concerned in the con-cealing of the opium for which the defendant was indicted, nor that Lee Dip and Chin Fook were con-spirators in the opium business. However, it was brought out at the trial that they were partners in the maintenance of a nearby gambling house. Chin Fook had a key to

the defendant's premises, and there were other circumstances tending to show a close relationship be-tween the two. In the principal case, the evidence of the conspiracy admitted was of the one in which the defendant was a conspirator. In the Putnam case, supra, the evi-dence admitted concerned the acts of the defendant's co-conspirators in a similar undertaking, but one in which the defendant was not concerned. In the Lee Dip case the court allowed evidence con-cerning a possible conspirator to be introduced who was not involved in the transaction for which the

de-fendant was on trial. This is an

extension of the general view, and it is doubtful if it is a wise one. The evidence does not really con-cern the charge for which the de-fendant is on trial, and might con-ceivably prejudice his interests. The jury should not be influenced by the crimes of his associates in weighing his guilt or innocence.

On the whole, the doctrine as expressed by the principal case seems to be a sound one. It is cer-tainly valuable, for if we did not have it, criminals like Luciano would be free today. There is no reason to believe that it would be unfair to the accused. If a person has procured the commission of a criminal act, or induced another to commit it, he should be punished as severely as the one actually per-forming it. The mere fact that conspiracy is indictable as a sep-arate offense should not operate to preclude its admissibility as evi-dence in other criminal prosecu-tions.